Foley, R (On the Application Of) v Secretary of State for the Home Department

A policy that Irish nationals will ordinarily not be deported is not an unlawful blanket ban where it permits exceptional cases to be considered individually. In applying the policy, the Secretary of State may consider the risk of clandestine return to the United Kingdom and whether offender management in the United Kingdom better protects public safety. A decision not to deport does not itself interfere with Article 8 rights where the relevant detention results from a lawful sentence. For TERS and Article 14 purposes, the relevant distinction is between prisoners who can and cannot be removed, rather than nationality. Any difference in treatment arising from the special arrangements for Irish nationals was, in any event, objectively and reasonably justified.

The claimant, an Irish citizen serving an IPP sentence, challenged the Secretary of State’s decision of 18 April 2017 to maintain a decision not to deport him. He argued that the decision unlawfully fettered the deportation discretion, failed to exercise a genuine discretion, departed from published policy, breached Articles 8 and 14 of the ECHR and breached Articles 7 and 21 of the Charter. He also relied on the effect of non-deportation on eligibility for the Tariff-Expired Removal Scheme, operated by the Secretary of State for Justice. The central issues were whether the Irish-national policy was lawful and whether the individual decision was procedurally fair, proportionate and non-discriminatory.

1. The claim was dismissed. The absence of any Irish national deportations during the relevant period did not establish a blanket ban. The policy expressly permitted deportation in exceptional cases and did not prevent departure from it where individual circumstances justified that course.
2. The Secretary of State had exercised a genuine discretion. The material showed consideration of the claimant’s offending, risk of reoffending and harm, family location, offending history and the available methods of managing risk. Procedural fairness did not require officials to solicit further representations or provide an oral hearing. The decision-maker was required to consider matters relevant to the statutory deportation power.
3. The published policy was followed. Its examples of exceptional cases were illustrative and did not require deportation even where an example was met. The policy’s underlying context permitted consideration of the Common Travel Area, the risk of clandestine return and the effectiveness of offender management in the United Kingdom.
4. Article 8 was not engaged by the decision not to deport. Any interference with family or private life resulted from the claimant’s lawful sentence, rather than from the challenged decision. Alternatively, any interference was lawful, necessary and proportionate. The Charter was not engaged because the claimant had no relevant right under EU law; alternatively, it added nothing.
5. The Article 14 challenge failed. Prisoners who are deported and prisoners who are not deported are not in an analogous position for TERS purposes. The relevant distinction concerns liability or eligibility for removal, not nationality. Alternatively, the special arrangements for Irish nationals pursued an objective and reasonable justification and were proportionate.